People v. McCormack

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered October 30, 2003. The judgment convicted defendant, upon his plea of guilty, of felony driving while intoxicated. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [i]), defendant contends that Supreme Court, Monroe County, failed to adhere to its promise to impose a sentence concurrent to the sentence to be imposed in a pending matter in Orleans County. We reject that contention. The court’s promise was based on the statement of defendant to the court that he would plead guilty to the charge of felony driving while intoxicated in Orleans County, but defendant thereafter withdrew his plea of guilty in Orleans County. “Under these circumstances[,] ‘there was a waiver of any rights the defendant may have had to request the fulfillment of the original promise as to sentence’ ” (People v Alvarado, 160 AD2d 1012, 1013 [1990], lv denied 76 NY2d 784, 937 [1990]). We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present—Pigott, Jr., P.J., Green, Kehoe, Martoche and Lawton, JJ.